United States v. Isaiah Gregory ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2735
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ISAIAH J. G REGORY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07CR30099-001-DRH—David R. Herndon, Chief Judge.
A RGUED D ECEMBER 7, 2009—D ECIDED JANUARY 15, 2010
Before C UDAHY, W OOD , and E VANS, Circuit Judges.
W OOD , Circuit Judge. Isaiah Gregory is still a young
man, but he has a lengthy enough criminal record to
have earned sentencing as a career offender for his
latest drug crimes. And the sentence was a stiff one:
327 months’ imprisonment, which represented the
high end of his advisory sentencing guideline range. On
appeal, Gregory has complained only about that sen-
tence. His principal assertion is that he should not have
2 No. 09-2735
been characterized as a career offender; secondarily,
he argues that his sentence was so extreme as to be unrea-
sonable for purposes of 18 U.S.C. § 3553(a). While
we acknowledge the severity of the sentence, we see no
error in the district court’s decisions that led to it.
We therefore affirm.
I
Gregory’s current problems with the law arise out of
his distribution of crack and powder cocaine in the cities
of Madison and Venice, Illinois, from approximately
January to June 2007. The government had a solid case
against him: it used a confidential source to purchase
the drugs from Gregory; the purchases were captured on
video and audio recordings; and incriminating evidence
was seized pursuant to a search warrant for a co-conspira-
tor’s apartment. In addition, Gregory was interviewed
twice by law enforcement agents, and he made
admissions about his drug dealings.
On February 22, 2008, Gregory was indicted on a
number of drug-related counts, including conspiracy to
distribute and possess with intent to distribute cocaine,
distribution of crack cocaine within 1,000 feet of a public
housing facility, and several substantive distribution
counts. See 21 U.S.C. §§ 841(a)(1), 846, 860. Approximately
a year later, on March 11, 2009, he entered an open plea
of guilty to all charges. As usual, the Probation Office
drafted a Presentence Investigation Report (“PSR”) in
preparation for sentencing. The writer of the report
concluded that Gregory was a career offender, for
No. 09-2735 3
purposes of U.S.S.G. § 4B1.1. The PSR identified two prior
convictions that counted for this purpose: first, one for
aggravated discharge of a firearm, and second, one for
robbery (of just $30). Gregory concedes that the former
conviction was properly included, because he committed
that crime at the age of 19 and he does not assert that it
failed to qualify as a crime of violence. He objected,
however, to the inclusion of the robbery conviction as a
predicate offense, because he was only 15 years old
when he committed that crime, and he served his sen-
tence in a juvenile facility.
In response, the government pointed out that Gregory
had been tried as an adult for the robbery and that the
certified copy of the conviction confirms that the final
disposition was an adult conviction, not a juvenile one.
The sentence was for six years, and thus easily met the
requirement of U.S.S.G. § 4B1.2(a) that the offense must
be punishable by a term of imprisonment exceeding one
year. The government also pointed out that the criminal
history section of the Guidelines addresses the situation
of someone who committed his offense before age 18 and
was convicted as an adult. See U.S.S.G. § 4A1.2(d). If
such a person received a sentence exceeding one year
and one month, then three criminal history points must
be added. The career offender guideline requires
reference to § 4A1.2 for the purpose of counting convic-
tions. § 4B1.2 cmt. n.3.
The district court ruled in the government’s favor. The
robbery conviction, it observed, was handled in the
adult division of the criminal court, even though Gregory
4 No. 09-2735
was only 16 years old at the time. Application Note 7 of
§ 4A1.2 did not require a different result. That note ex-
pands on the criminal history guideline for those who
committed their offense before their eighteenth birth-
day. It states that “for offenses committed prior to age
eighteen, only those that resulted in adult sentences
of imprisonment exceeding one year and one month, or
resulted in imposition of an adult or juvenile sentence
or release from confinement on that sentence within
five years of the defendant’s commencement of the
instant offense are counted.” § 4A1.2 cmt. n.7. The court
interpreted the five-year rule appearing at the end of that
sentence as applying only to adult convictions where
the sentence imposed was less than a year and a month
or a juvenile sentence. Because Gregory was sentenced
to six years in prison, the former language did not help
him. The court rejected Gregory’s argument that his was
a “juvenile sentence” because it was served in a
juvenile facility.
With those objections behind it, the court classified
Gregory as a career offender, computed the applicable
guideline range as 262-327 months, and sentenced Gregory
to the high end of the range. (Had Gregory not been
classified as a career offender, his guideline range
would have been much lower, though the parties
contest by how much. Both the government and
Gregory filed supplemental briefs at our request that
addressed this question. The government suggests that
Gregory would have had an offense level of 29 and a
criminal history category of IV, for a range of 121-151
months. Gregory concedes that his offense level would
No. 09-2735 5
have been 29, but he asserts that without the juvenile
conviction his criminal history category would have
been III, and thus his guideline range would have been
120-135 months, reflecting the statutory minimum of
10 years. We need not resolve this dispute, since we
agree with the district court’s decision to use the career
offender guideline.) The court explained that Gregory
had a “very violent background,” that “he is a career
criminal not only by guideline classification, but in
fact,” that he habitually was involved with firearm dis-
plays and discharges, and that “he is a very dangerous
person to the community.” In order to provide adequate
deterrence, protect the public, and respond to a person
who thus far had “completely disregard[ed] law,
authority, and the right of other people to live along
with him in a law-abiding way,” the court concluded
that the high-end sentence was appropriate.
II
A person qualifies as a career offender under the Guide-
lines if “(1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.” U.S.S.G. § 4B1.1(a). The
only question before us relates to the third requirement:
if Gregory’s prior robbery conviction counts as a crime
of violence, then he was properly classified as a career
offender; if not, he is entitled to resentencing.
6 No. 09-2735
The issue that Gregory has presented has more
substance to it than even he may have realized. It has
split the circuits, and thus we must decide which side
we should endorse. The Fourth Circuit has sided with
Gregory, see United States v. Mason, 284 F.3d 555, 559-62
(4th Cir. 2002), while the Third, Ninth, and Eleventh
Circuits have taken the government’s position, see United
States v. Moorer, 383 F.3d 164, 167-69 (3d Cir. 2004) (ex-
pressly declining to follow the Fourth Circuit); United
States v. Pinion, 4 F.3d 941, 943-45 (11th Cir. 1993); and
United States v. Carrillo, 991 F.2d 590, 593-94 (9th Cir.
1993). It appears that the Second Circuit has come close
to the government’s position as well. See United States
v. Driskell, 277 F.3d 150, 156-58 (2d Cir. 2002). The dif-
ference of opinion centers on the question whether, in
addition to distinguishing between adult and juvenile
convictions, the Guidelines also call for distinguishing
between adult and juvenile sentences, depending on
whether the sentence is imposed pursuant to the adult or
juvenile criminal code. The Fourth Circuit concluded
that the Sentencing Commission did adopt the latter
refinement. The word “imprisonment,” it said, applies
only to adult convictions, whereas the word “confine-
ment” applies to both juvenile and adult dispositions.
Mason, 284 F.3d at 560. A “sentence of imprisonment”
for purposes of § 4A1.2(d)(1) must refer, the court rea-
soned, only to sentences doled out under the state’s
adult sentencing laws. Id.
The remaining courts have not been persuaded by this
line of argument. In Moorer, for example, the Third
Circuit argued that to read Application Note 7 to
No. 09-2735 7
§ 4A1.2(d) to require the juvenile defendant be sen-
tenced as an adult would be inconsistent with note 1 to
§ 4B1.2, which “clearly defines a ‘prior felony convic-
tion’ purely in terms of the kind of conviction the defen-
dant had, not the kind of sentence.” 383 F.3d at 168.
Accord, Carrillo, 991 F.2d at 594. The Ninth Circuit adds
that the Fourth Circuit’s approach reads too much into
note 7. Id. at 593-94. It found that the phrase “adult sen-
tences of imprisonment” was meant only to serve as a
shorthand reference to the phrase in § 4A1.2(d)(1) de-
scribing “those defendants who were convicted as an
adult and received a sentence of imprisonment.” Id. Both
the Ninth and Eleventh Circuits also observe that the
Fourth Circuit position cuts against the policy animating
the career offender guidelines. Id. at 594-95; Pinion, 4 F.3d
at 945. Minors convicted as adults are sometimes
(perhaps often) sentenced more leniently under juvenile
criminal codes, in the hopes that they might be rehabili-
tated. If they persist in a life of crime, however, the
career offender guidelines call for a lengthier sentence.
Carrillo, 991 F.2d at 594-95; Pinion, 4 F.3d at 945.
Like the majority of our colleagues, we are not
persuaded by the Fourth Circuit’s approach. We find it
difficult to believe that the Commission would have
made such an important point about juveniles convicted
as adults using such subtle linguistic signals. If the Com-
mission had wanted to draw such a sharp distinction
between juveniles with adult convictions sentenced as
adults and those sentenced as juveniles, it would have
done so more clearly. We conclude, therefore, that the
critical question is whether the juvenile was convicted
as an adult, not how he was sentenced.
8 No. 09-2735
That disposes of Gregory’s principal claim. He was
old enough to be moved over to the adult courts at the
time he committed his robbery, and that is what the
state decided to do. He was sentenced to six years as
an adult, and only then was he moved to the juvenile
detention facility. People serve their sentences in many
different places: some are moved to private prisons;
some wind up spending time in the facilities of another
state or the federal government; some are lodged in
county jails. The location is unimportant. What does
matter is the nature of the underlying conviction.
Gregory could not have received a sentence for a
definite term of six years if the state had been
proceeding under the Juveniles Court Act, § 5-750(3); as
the conviction reflects, he received a sentence for a class 2
felony, pursuant to 730 ILCS 5/5-4.5-35(a).
III
The only question that remains is whether Gregory’s
sentence of 327 months is so long that we must find it
substantively unreasonable. In trying to persuade us
that it is, Gregory stresses the fact that the two under-
lying felonies that supported his career criminal status
were far from the worst offenses one sees. The robbery
he committed at the age of 15 involved taking $30
from someone by force; although the sentence was for
six years, he served only two years for it. Gregory com-
mitted the other offense when he was 19; the crime was
the aggravated discharge of a firearm. Nevertheless,
these were both crimes of violence as the Guidelines
No. 09-2735 9
define them. We grant that Gregory’s status as a career
criminal has had the effect here of more than doubling
his guidelines range, from 120-135 (as he sees it) up to 262-
327. The district court recognized that it had the dis-
cretion to sentence Gregory to a shorter term. It chose not
to do so, and explained why it thought that Gregory’s
record taken as a whole required the 327-month sentence.
The court was well aware that Gregory was young at the
time he committed the predicate offenses, and was still
just in his mid-20s when he found himself facing these
federal charges.
We see no principled way in which we could find that
the court’s choice of sentence—falling as it did within the
properly computed guideline range—was so poorly
supported by the record that we should brand it “unrea-
sonable.” We therefore A FFIRM the judgment of the district
court.
1-15-10